TOLEMAN & DYER

[2014] FamCA 1206

FAMILY COURT OF AUSTRALIA

TOLEMAN & DYER [2014] FamCA 1206

FAMILY LAW – Case Management – s 69ZT(3) applied – appointment of single expert witness over opposition of a party.

Family Law Act 1975 (Cth)

APPLICANT: Ms Toleman

RESPONDENT: Mr Dyer

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 427 of 2014

DATE DELIVERED: 1 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Cronin J

HEARING DATE: 1 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Raki

SOLICITOR FOR THE APPLICANT: Moreheads Lawyers

COUNSEL FOR THE RESPONDENT: Mr Stanley

SOLICITOR FOR THE RESPONDENT: Robert Beckworth Partners

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Eidelson

SOLICITOR FOR THE INDEPEDNENT

CHILDREN’S LAWYER:

Westminster Lawyer

Orders

1. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin as the second case in the monthly list commencing on 15 January 2015 not to be called before 10 am on 19 January 2015 as a three day matter.

2. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

3. By 4 pm on 23 December 3014 the applicant file and serve upon all other parties all affidavits of evidence to be relied upon.

4. The applicant pay all required court fees by 4 pm on 23 December 2014.

5. By 4 pm on 9 January 2015 the respondent file and serve upon all other parties all affidavits of evidence to be relied upon

6. By 4 pm on 16 January 2015 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

7. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

FAMILY REPORT

1. Pursuant to s 62G (2) of the Family Law Act, the parties attend upon and at the direction of Mr B, psychologist at the expense initially of the husband (but the payment thereof be a matter for trial) for the purposes of the preparation of a family report not to be commenced until after 16 December 2014 but to be completed and released by 19 January 2015.

2. The appointed psychologist:

   (a)may require a party to attend with, or bring in, a child whose interests may be affected by the proceedings;

   (b)may have access to the court file (but be conscious that the evidence of the parties is contained in their affidavits as ordered above);

   (c)may have access to any documents produced under subpoenae that have been released for inspection;

   (d)should consider the factors in s 60CC of the Family Law Act 1975 so far as the consultant considers them relevant; and

   (e)should advise the Court generally about matters of child welfare and development.

   SUBPOENAE

3. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

   CASE MANAGEMENT

4. The registrar may vary the filing timetable under these orders.

5. If a party fails to comply with these orders, a party who has complied may file an application in a case supported by an affidavit seeking to proceed on an undefended basis.

6. Any rulings required on objections to evidence shall be set out in the case outline.

7. By 4 pm on 16 January 2015 all parties file electronically to…  a case outline in one document setting out:

   (a)a concise set of orders to be sought;

   (b)the list of the affidavits to be read;

   (c)the list of objections to evidence requiring a ruling; and

   (d)the outline of the issues in dispute.

   COSTS

8. At the commencement of the hearing, each party shall provide the court with a statement setting out their costs incurred to that date, the source of any payments made and what costs are expected until the completion of the hearing.

9. That pursuant to s 69ZT of the Family Law Act 1975 (Cth) the rules of evidence shall apply to these proceedings.

10. That the reasons this day be transcribed and be made available to the parties.

    AND THE PARTIES SHOULD NOTE:

    A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

    B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Toleman & Dyer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 427 of 2014

Ms Toleman

Applicant

And

Mr Dyer

Respondent

REASONS FOR JUDGMENT

1. This is an application on the first day of the hearing before a judge for the matter to be set down for trial.  It is significant that it is a Magellan matter which needs very little explanation other than the fact that the Court has adopted a policy in the recent years to expedite these hearings.

2. Here I had two quite discrete applications which are opposed by the mother. The first relates to the question of how the trial should be conducted in relation to the rules of evidence. Division 12A of the Family Law Act provides that the rules of evidence in parenting matters should not normally apply unless there are exceptional circumstances. 

3. In determining what is exceptional, I take into account in this particular case that there are very serious allegations.  Allegations that are not just made against the father.  There are now allegations made against the mother.  In those circumstances, it seems to me that the evidence needs to be very carefully considered and tested properly.  The significance of any testing of the evidence lies in the outcome.  In this case, if the allegations against the father are true then there are very serious consequences – not only for his relationship with C but, indeed, for C in the future is made that she has been sexually abused.

4. Equally, there are very serious consequences for the mother if it is found – based on the evidence of Dr D – which is opposed – that she suffers from some sort of mental health issue which might exclude her from having a significant role in her own child’s life. It seems to me that, in those circumstances, she would want Dr D’s evidence tested fully one way or the other. The consequences of the outcome of these proceedings for this child are important. On that basis, this seems to me to be an exceptional case in which section 69ZT(3) should apply.

5. The second question relates to the sort of expert evidence that the Court should have. Under division 12A, it is the responsibility of the Court to decide what evidence it hears. Whilst the parties, obviously, have a very significant input into that, it is still a matter for the Court to decide what issues are to be determined in what order and by what evidence. The unusual feature of this case is that because of the resources of the Court and, in particular, my absence for other commitments in 2015, my earliest opportunity but for January, would not be until July.

6. C has been having time with her father under not only paid supervised time, but in very restricted circumstances.  That runs counter to the concept in section 60B of the Act.  As I have described in other judgments in this Court, section 60B sets out the aspirations of the Australian community for each children.  Whilst the protection of children is the paramount consideration in a case like this, the most obvious solution is to actually test the evidence and find out what the best interests of the child are.

7. In this case, if I appoint a family consultant engaged by the Court, the prospect of that enabling the Court to hear the case much before the middle of 2015 is very limited.  On the other hand, I have been advised that psychologist, Mr B, has a cancellation and is available to hear from the parties on 16 December and can prepare a report which is to be made available by the parties on 19 January.

8. Mr B is like any other witness.  Whilst he is well-known to the Court in parenting cases, like most people, he still has to establish his expertise as well as the foundations for any opinions that he gives.  The mother’s position is that she would prefer to have a family consultant from within the Court because she has had a bad experience – as she would describe it – with Dr D, who saw her for one and a half hours.  She has, subsequently, seen a psychiatrist who has indicated that Dr D could not have made the diagnosis that he has in that short period of time. 

9. There is clearly a distinction between a treating psychiatrist and a forensic psychiatrist.  It is the role of the forensic psychiatrist to work with the material that they have available to them.  Again, I do not see a problem with the assertion that Dr D got it wrong.  That issue will be tested in cross-examination.  Dr D is a witness who normally subjects himself to cross-examination and, no doubt, the parties will contemplate whether or not they have something to put to him.

10. On that basis, it seems to me that this is a case that should be dealt with expeditiously and with the prospect of Mr B being available on 16 December for a trial that could commence in January as a consequence, I think the parties should take that opportunity.

11. Clearly, there will be a problem if there is some dispute about payment.  But I do not propose to get involved in that dispute at this stage.  No doubt, the parties can work that out between themselves.  On that basis, I rule that Mr B is to be the single expert witness in relation to the preparation of a family report and, particularly, I want him to consider the nature of the relationship between C and the respective parents.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 December 2014.

Associate: 

Date:  24 December 2014